Wednesday, February 27, 2013

Over Under Surveillance

On February 26, 2013, the United States Supreme Court ruled, in Clapper v. Amnesty International USA, that litigants challenging the constitutionality of 50 U.S.C. 1881a - added to the the Foreign Intelligence Surveillance Act ("FISA") in 2008 - lacked standing to sue.  This recent amendment to FISA allows

the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval.  [Footnote omitted.]
Those challenging section 1881a argued that

they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future.
A five to four majority of Supreme Court justices disagreed.  They held that

respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm.
Because of this, the Court reversed and remanded a judgment by the Second Circuit Court of Appeals that had favored the challengers.

Privacy in electronic communications is fraught with peril.  Both governments and nongovernmental entities often intercept private messages or data.  Rights to electronic privacy have expanded, but threats to that privacy have increased even more quickly.  Caveat missor!